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Judgment
K. Govindarajan, J.—The above Revision is filed challenging the order passed in Crl. M.P. No. 422 of 1997 on the file of the Special
Judge, Chennai dated 10.7.1997.
The petitioner is the Accused No.3 in C.C.No.4 of 1997, who was prosecuted by the complainant for the alleged offence punishable under
S.120-B of the Indian Penal Code, read with S. 13(2), and S. 13(l)(d) of Prevention of Corruption Act 1988 and under Ss.240 and 109 of
I.P.C., etc. According to the petitioner, he was summoned by the Sessions Court to answer the charges mentioned therein and he appeared before
the Court on 21.12.1996. He was furnished with copies of the documents pursuant to S.207 Criminal Procedural Code. The petitioner filed an
objection in Crl. M.P. No. 422 of 1997, under S.239 Crl. P.C. with a prayer to exonerate him of all the charges leveled against him. In the
objection it is stated that, under S.19 of the Prevention of Corruption Act, the sanction should be obtained from the Central Government before
taking cognizance of the offence by the lower Court. The petitioner being the member of the Indian Administrative Service, he can be removed
only by the order of the Central Government. Therefore, the Central Government is the Sanctioning Authority. But, no sanction was accorded and
filed before the lower Court on the date on which the lower Court took cognizance of the offence and the sanction was obtained only
subsequently, which will not cure the defect. On the above basis the petitioner filed the above objection.
The respondent filed a counter wherein it is stated that the Government of Tamil Nadu by its order in G.O.Ms.No.1339 Public (Special-A)
Department dt 15.11.96 accorded sanction for offences punishable under the Indian Penal Code. In the said sanction order it was also mentioned
that the President of India had been addressed to accord sanction for prosecution under S.19(l)(c) of Prevention of Corruption Act 1988 against
the petitioner. In view of the direction given by this Court in Crl. R.C. No.547 of 1996 directing the respondent to complete the investigation and
file the report before the competent Court on or before 18.11.1996, the report was filed on 15.11.1996. The Government of India in its order
No.107/15/96-AVD-I, dated 17.1.1997 accorded sanction for prosecution of the petitioner under the provisions of the Prevention of Corruption
Act 1988. The said order was filed before the Court on 21.1.1997. After considering the petition and counter, the lower Court rejected the
request of the petitioner on the ground that the Principal Sessions Court took the complaint on file in C.C. No. 42 of 1996 and after the said case
was made over to the Special Court, it had issued summons to all the accused and they had appeared before that Court on 13.6.1997, that before
that date the Central Government accorded the sanction and so, on the date of issue of summons by the Special Court, the sanction was properly
obtained. Aggrieved against the same, the petitioner has filed the above Revision.
The learned counsel appearing for the petitioner has submitted that in view of S. 19 of the Prevention of Corruption Act 1988, the Courts are
prohibited from taking cognizance of the offence punishable under Ss.7, 10, 11, 13 and 15 of the said Act without proper order of sanction from
the Government. According to him, the Principal Sessions Judge took cognizance of the offence on 19.11.1996 and issued summons. Admittedly,
on 19.11.1996 no sanction was ordered by the Central Government to take cognizance of the case against the petitioner for the offence punishable
under S. 13(l)(d) and 13 (2) etc., of the said Act. Though it was subsequently after transfer to the Special Court, the Special Court issued
summons, the respondent cannot take advantage of the fact of issue of summons by the Special Court, in view of the specific provision that no
Court shall take cognizance of the offence without sanction from the concerned government. On that basis the learned counsel has submitted that
the petitioner has to be exonerated with respect to all the offences. In support of his submission, the learned counsel has relied on number of
judgments.
The learned Public Prosecutor, per contra, has submitted that the sanction was obtained from the Central Government and was filed before the
Court on 21.1.1997. The trial is yet to be commenced. Though the Principal Sessions Judge issued summons on 19.11.1996, the case was made
over to the Special Court, pursuant to the Government Order dated 30.4.1997. The Special Court issued summons on which date the sanction
order was obtained from the Central Government and file before the Court. The learned Public Prosecutor has relied on the averments mentioned
in the G.O. Ms. No.1339, Public (Special-A) Department dated 15.11.1996 under which the State Government accorded sanction for
prosecution of the offences committed under the relevant Sections of I.P.C. It is stated in the said sanction order that the President of India was
addressed for according sanction for prosecution under S. 19(l)(c) of the Prevention of Corruption Act against the petitioner for offences arising
under the said Act. The learned Public Prosecutor has submitted that though the Principal Sessions Judge issued summons in the case after taking
cognizance of the offence alleged, it cannot be said that the entire proceedings cannot be sustained. The Principal Sessions Judge is right in issuing
summons with respect to the offences committed under the I.P.C. in view of the fact that the State Government has already accorded sanction.
Since the charges are inter- linked and in view of the fact that the Central Government had already been addressed for getting sanction, which fact
was mentioned in the G.O. dated 15.11.1996, the Principal Sessions Judge has rightly issued summons to the petitioner. On the above basis, the
learned Public Prosecutor has submitted that the petition filed by the petitioner is not maintainable.
Admittedly, in this case, the Principal Sessions Judge took cognizance of the offence body under the provisions of the I.P.C. and under the
Prevention of Corruption Act.
It is not in dispute that the petitioner belongs to Indian Administrative Service and he has also been prosecuted for the offences alleged to have
been committed under the provisions of Prevention of Corruption Act 1988. So, in view of S. 19 of the said Act, the sanction should be obtained
and filed before the concerned Court before taking cognizance of the offence alleged. Sanction of the appropriate government or competent
authority would be necessary to protect the public servant from needless harassment or vexatious prosecution. Sanction lifts the bar for
prosecution Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecutions and is a safeguard for the innocent but not a
shield for the guilty. The said protection of sanction is an assurance to an honest and sincere officer to perform his public duty to the best of his
ability. The threat of prosecution would demoralize the honest officer. So, while enacting the Act 49 of 1988, S.19 was introduced. S. 19(1) of the
Act reads as follows :-
Previous sanction necessary for prosecution - (1) No Court shall take cognizance of an offence punishable under Ss.7, 10, 11, 13 and 15
alleged to have been committed by a public servant, except with the previous sanction,
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the
sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the
sanction of the State Government, of that Government.
(c) in the case of any other person, of the authority competent to remove him from his office.
We have to see whether the present proceedings against the petitioner are in accordance with the said object and the said provision.
While deciding what is meant by ""taking cognizance of the offence"", the Apex Court in the decision reported in 1976 S.C.C.(Crl.) 380 (D.L.
Reddy v. V. Narayana Reddy) has held as follows:-
What is meant by ''taking cognizance of an offence'' by a magistrate within the contemplation of S.190. This expression has not been defined in the
Code. But from the scheme of the Code, the content and marginal heading of S. 190 and the caption of Chapter XIV under which Ss. 190 to 199
occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in
which such cognizance can be taken are set out in clauses (a), (b) and (c) of S. 190(1). Whether the magistrate has or has not taken cognizance of
the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of
the preliminary action, if any, taken by the magistrate. Broadly speaking, when on receiving a complaint, the magistrate applies his mind for the
purposes of proceeding under S.200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the
offence within the meaning of S.190(l)(a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action
of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under S. 156(3), he
cannot be said to have taken cognizance of any offence.
The Apex Court has also held in the decision reported in 1995 (1) S.C.J. 617 (State of West Bengal v. Mohammed Khalid), as follows:-
Then, the question is as to the meaning of taking cognizance. S. 190 of the Code talks of cognizance of offences by Magistrates. This expression
has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating
judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings
or for other purposes. The word ''Cognizance'' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is
entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the
Judge. Congnizance is taken of cases and not of persons.
In the decision reported in 1984 S.C.C. (Crl.) 277 (A.R. Antulay v. Ramdas Srinivas Nayak), the Apex Court has held as follows:-
When it is said that Court issues process, it means the Court has taken cognizance of the offence and has decided to initiate the proceedings and as
a visible manifestation of taking cognizance, process is sued which means that the accused is called upon to appear before the Court.
In view of the above, the proceedings of the Principal Sessions Court dated 19.11.1996 are nothing but taking cognizance of the complaint on that
date. The made over to the Special Court, in view of the Government Orders and issue of summons to the accused by the Special Court, cannot
be construed as taking cognizance of the offence by the Special Court. It should be construed that after transfer of cases from the Principal
Sessions Court, to the Special Court, the Special Court has issued summons to bring the same to the notice of the accused to the effect that the
case has been transferred and posted before the Special Court.
Now we have to proceed further on the basis of the above finding whether the Principal Sessions Judge is correct in taking cognizance of the
offence on 19.11.1996, in spite of the admitted fact that there was no order of sanction obtained from the Central Government to proceed with the
offence under the provisions of the Prevention of Corruption Act 1988.
The Apex Court in the decision reported in 1984 S.C.C. (Crl.) 172 (R.S. Nayak v. A.R. Antulay) and has held as follows:-
Existence thus of a valid sanction is a prerequisite to the taking of cognizance of the enumerated offences alleged to have been committed by a
public servant. The bar is to the taking of cognizance of offence by the Court. Therefore, when the Court is called upon to take cognizance of such
offences, it must enquire whether there is a valid sanction to prosecute the public servant for the offence alleged to have been committed by him as
public servant. Undoubtedly, the accused must be a public servant when he is alleged to have committed the offence of which he is accused
because Ss.161, 164, 165 IPC and S.5(2) of the 1947 Act clearly spell out that the offences therein defined can be committed by a public
servant. If it is contemplated to prosecute public servant who has committed such offences, when the Court is called upon to take cognizance of
the offence, a sanction ought to be available otherwise the Court would have no jurisdiction to take cognizance of the offence. A trial without a
valid sanction where one is necessary under S.6 has been held to be a trial without jurisdiction by the Court.
The learned counsel, on the basis of the abovesaid decision has submitted that the proceedings so far taken against the petitioner under the
provisions of the Prevention of Corruption Act have become null and void for taking cognizance of the said offence, without the sanction order. In
support of his submission, the learned counsel has relied on the decision of the Apex Court reported in Baij Nath Prasad Tripathi Vs. The State of
Bhopal, wherein it has been observed as follows:-
If no Court can take cognizance of the offences in question without a legal sanction, it is obvious that no Court can be said to be a Court of
competent jurisdiction to try those offences and that any trial in the absence of such sanction must be null and void, and the sanctions of the Code
on which learned counsel for the petitioners relied have really no bearing on the matter. S.530 of the Code is really against the contention of
learned counsel, for it states, inter alia, that if any Magistrate not being empowered by law to try an offender, tries him, then the proceedings shall
be void. S. 529(a) is merely an exception in the matter of taking cognizance of an offence under S.190, sub. S(l), Cls.(a) and (b); it has no bearing
in a case where sanction is necessary and no sanction in accordance with law has been obtained.
In view of the above, it is clear that the proceedings taken so far against the petitioner under the provisions of Prevention of Corruption Act 1988
cannot be sustained. The proceedings taken even before the Special Court were also without jurisdiction.
But, the petitioner in the objection filed before the lower Court in Crl. M.P. No. 422 of 1997 prayed for exonerating him of all the charges
leveled against him. Now, we have to decide whether such a prayer can be allowed at the instance of the petitioner.
In the present case the petitioner is prosecuted by the respondent both under the provisions of the I.P.C. and the provisions of Prevention of
Corruption Act 1988. With respect to the offences under the provisions of I.P.C, the Government of Tamilnadu in G.O.Ms. No. 1339 Public
(Special-A) dated 15.11.1996 accorded sanction for prosecution against the petitioner. In the said order it is stated that ""President of India has
been addressed to accord sanction for the prosecution under S.19(l)(c) of Prevention of Corruption Act 1988 against the accused Thiru T.R.
Srinivasan for the offence arising under the said Act"". The Government of India accorded sanction only on 17.1.1997 in order No. 107/15/96-
AVD-I. So, with respect to the offence committed under the I.P.C, proper sanction was accorded even on 19.11.1996 and so it cannot be now
said that the learned Principal Sessions Judge has no jurisdiction to take cognizance of the offence under the provisions of I.P.C. If at all, in view of
the above discussions, the Principal Sessions Judge would not have jurisdiction for want of sanction to take cognizance of the offence under the
provisions of Prevention of Corruption Act 1988. Merely because he took cognizance of the entire complaint, now it cannot be submitted that
even with respect to the offences under the provisions of I.P.C, the petitioner should be exonerated from the entire proceedings. Such a submission
cannot be sustained in view of the settled law by the Apex Court.
16 The Apex Court, in the decision reported in Madan Lal Vs. State of Punjab, has held as follows:-
The conspiracy to commit an offence is by itself distinct from the offence to do which the conspiracy is entered into. Such an offence, if actually
committed, would be the subject-matter of a separate charge, if that offence does not require sanction though the offence of conspiracy does and
sanction is not obtained it would appear that the Court can proceed with the trial as to the substantive offence as if there has no charge of
conspiracy.
In view of the above discussions, the proceedings of the Principal Sessions Judge and the Special Court with respect to the issue of summons
against the petitioner for the offences alleged to have been committed under the provisions of the Prevention of Corruption Act 1988 have to be
quashed and they are accordingly quashed. But, this will not preclude the Special Court to take cognizance of the offence under the provisions of
Prevention of Corruption Act afresh on the basis of the sanction order issued by the Government of India dated 17.1.1997 and proceed further.
The petitioner will not in any way be prejudiced by this direction as the trial is yet to be commenced.
With the above observations, this Revision is partly allowed. Consequently, Crl. M.P. Nos. 4348 & 4349 of 1997 are closed.